Public Sector Employment (Award Entitlements) Act 2006FILE/06-15a010.docx · Web viewOCPC-VIC,...

Version No. 010

Public Sector Employment (Award Entitlements) Act 2006

No. 15 of 2006

Version incorporating amendments as at 31 October 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 23 Definitions 24 Awards 65 Preserved award 66 Relevant award 77 Family Provisions standard 88 Act binds the Crown 8

PART 2—PRESERVATION OF AWARD CONDITIONS 9

9 Preserved entitlements 910 Preservation of award conditions 9

PART 3—Repealed 10

11–15 Repealed 10

PART 3A—RESTRICTION ON AGREEMENTS 11

15A Definitions 1115B Restriction on public sector employer offering statutory

industrial agreement 1215C Limitation on certain powers of public sector employers 1215D Common law not excluded 1315E Application 13

1

PART 4—GENERAL 14

16 Exclusion of other legislation 1417 Repealed 1418 Regulations 14

PART 5—Repealed 14

19, 20 Repealed 14═══════════════

ENDNOTES 15

1. General Information 15

2. Table of Amendments 16

3. Explanatory Details 17

2

Version No. 010

Public Sector Employment (Award Entitlements) Act 2006

No. 15 of 2006

Version incorporating amendments as at 31 October 2012

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purposes

The purposes of this Act are to—

(a) ensure that Victorian public sector employers continue to provide fair minimum employment conditions to public sector employees;

* * * * *

(ba) assist in giving effect to Australia's obligations under the following conventions adopted by the International Labour Organisation—

(i) the Freedom of Association and Protection of the Right to Organise Convention, 1948;

(ii) the Right to Organise and Collective Bargaining Convention, 1949;

(c) amend the Workplace Rights Advocate Act 2005 to provide for the delegation of additional functions;

1

S. 1(b) repealed by No. 27/2008 s. 4.

S. 1(ba) inserted by No. 80/2006 s. 21(1).

(d) amend the Commonwealth Powers (Industrial Relations) Act 1996 to exclude certain matters from those referred by that Act to the Parliament of the Commonwealth.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day to be proclaimed.

(2) If this Act does not come into operation before 1 December 2006, it comes into operation on that day.

3 Definitions

(1) In this Act—

Australian Fair Pay Commission means the Australian Fair Pay Commission established under the Commonwealth Act;

Australian Industrial Relations Commission means the Commission within the meaning of the Commonwealth Act;

Australian workplace agreement has the same meaning as it has in the pre-amendment Commonwealth Act;

award has the meaning given by section 4;

certified agreement has the same meaning as it has in the pre-amendment Commonwealth Act;

Commonwealth Act means the Workplace Relations Act 1996 of the Commonwealth as in force before the WR Act repeal day (within the meaning of the Fair Work Transition Act);

2

s. 2

S. 3(1) def. of Common-wealth Act amended by Nos 24/2009 s. 14(b), 29/2011 s. 3(Sch. 1 item 76).

Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth as in force from time to time;

designated preserved award, in relation to an employee to whom a workplace agreement will apply, means a preserved award in respect of which WRA made a determination under section 12 before its repeal;

S. 3(1) def. of employee amended by Nos 80/2006 s. 21(2), 27/2008 s. 5(b).s. 3

employee means employee of a public sector employer including, in relation to the Chief Commissioner of Police, a member of the force within the meaning of the Police Regulation Act 1958;Note

See subsection (2). Also, section 15A gives employee an extended meaning for the purposes of Part 3A.

Employment Advocate has the same meaning as it has in the Commonwealth Act;

exceptional matters order has the same meaning as it has in the pre-amendment Commonwealth Act;

Fair Work Australia has the same meaning as it has in the Commonwealth Fair Work Act;

Fair Work Transition Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;

3

S. 3(1) def. of Common-wealth Fair Work Act inserted by No. 24/2009 s. 14(a).

S. 3(1) def. of designated preserved award substituted by No. 27/2008 s. 5(a).

S. 3(1) def. of Fair Work Australia inserted by No. 24/2009 s. 14(a).

S. 3(1) def. of Fair Work Transition Act inserted by No. 24/2009 s. 14(a).

* * * * *

Family Provisions standard means the standard set of terms and conditions of employment published by the Minister under section 7(1);

Family Provisions Test Case means the decision of the Full Bench of the Australian Industrial Relations Commission on 8 August 2005 published in Print PR082005;

federal no-disadvantage test means the test referred to in section 346D of the Workplace Relations Act 1996 of the Commonwealth;

industrial instrument means—

(a) an award as in force at the preservation time;

(b) a certified agreement;

(c) an agreement in relation to which an application for certification was made before the preservation time but not certified before that time;

(d) an Australian workplace agreement filed with the Employment Advocate before the preservation time, whether or not approved or receipted by the Employment Advocate before that time;

(e) an exceptional matters order;

(f) an award made under section 170MX of the pre-amendment Commonwealth Act;

4

S. 3(1) def. of fairness test repealed by No. 27/2008 s. 5(c).

S. 3(1) def. of federal no-disadvantage test inserted by No. 27/2008 s. 5(d).

s. 3

(g) any order of the Australian Industrial Relations Commission as in force at the preservation time;

preservation time means the time immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth;

pre-amendment Commonwealth Act means the Workplace Relations Act 1996 of the Commonwealth as in force at the preservation time;

public sector employer means—

(a) an entity responsible for employing a person in—

(i) a public sector body within the meaning of the Public Administration Act 2004; or

(ii) a Department within the meaning of the Parliamentary Administration Act 2005; or

(b) the Chief Commissioner of Police in relation to a member of the force within the meaning of the Police Regulation Act 1958; or

(c) an entity, or an entity of a specified class, prescribed to be a public sector employer for the purposes of this Act;

trade union has the same meaning as it has in the Commonwealth Act;

workplace agreement has the same meaning as it has in the Commonwealth Act and includes any workplace agreement that is the subject of a transitional arrangement under the Fair Work Transition Act;

5

s. 3

S. 3(1) def. of workplace agreement amended by No. 24/2009 s. 14(c).

workplace determination has the same meaning as it has in the Commonwealth Act and includes any workplace determination that is the subject of a transitional arrangement under the Fair Work Transition Act;

WRA means the Workplace Rights Advocate under the Workplace Rights Advocate Act 2005 as in force before its repeal.

(2) To avoid doubt, members of the force within the meaning of the Police Regulation Act 1958 are treated as employees of the Chief Commissioner of Police for the purposes of this Act.

4 Awards

(1) Subject to subsections (2) and (3), for the purposes of this Act, award has the same meaning as it has in the pre-amendment Commonwealth Act.

(2) An award includes a term of an award that is a common rule in Victoria under section 141, 142 or 493A of the pre-amendment Commonwealth Act.

(3) An award does not include—

(a) an exceptional matters order;

(b) an award made under section 170MX of the pre-amendment Commonwealth Act.

5 Preserved award

(1) For the purposes of this Act, a preserved award means an award as in force at the preservation time.

(2) For the purposes of this Act, in addition to the terms and conditions of employment contained in a preserved award, the preserved award is deemed

6

S. 3(1) def. of workplace determination amended by No. 24/2009 s. 14(d).

S. 3(1) def. of WRA amended by No. 21/2009 s. 7.

s. 4

to include any increase in minimum pay rates after the preservation time as a result of—

(a) a decision or determination of the Australian Fair Pay Commission;

(b) an order of the Australian Industrial Relations Commission;

(c) an order or determination of Fair Work Australia made under the Commonwealth Fair Work Act or the Fair Work Transition Act.

6 Relevant award

(1) For the purposes of this Act, a relevant award, in relation to an employee and his or her employer, means a preserved award—

(a) that was binding on the employer at the preservation time; and

(b) to which the employee's employment was subject at the preservation time or would have been subject had the employee been employed by the employer at the preservation time.

(2) For the purposes of this Act, more than one preserved award may be a relevant award.

(3) If, after the preservation time, a public sector employer (the new employer) becomes the successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of another public sector employer (the old employer), a preserved award binding on the old employer at the preservation time is taken to be binding on the new employer at the preservation time for the purposes of subsection (1).

7

S. 5(2)(b) amended by No. 24/2009 s. 15(1).

S. 5(2)(c) inserted by No. 24/2009 s. 15(2).

s. 6

7 Family Provisions standard

(1) The Minister may, by notice published in the Government Gazette, specify a standard set of terms and conditions of employment based on the Family Provisions Test Case.

(2) The power conferred on the Minister by subsection (1) may only be exercised once.

8 Act binds the Crown

This Act binds the Crown.

__________________

8

s. 7

PART 2—PRESERVATION OF AWARD CONDITIONS

9 Preserved entitlements

For the purposes of this Part, the preserved entitlements of an employee means the terms and conditions of employment of the employee under a relevant award to the extent that they are not excluded or modified by an industrial instrument that is in force under the Commonwealth Act, or continued in force under a transitional arrangement under the Fair Work Transition Act.

10 Preservation of award conditions

(1) A public sector employer must not provide a term or condition of employment to an employee that is less favourable to the employee than the employee's preserved entitlements.

(2) Subsection (1) does not apply—

(a) if the public sector employer makes a workplace agreement binding on the employer and the employee that passes the fairness test (as in force before the repeal of section 13) or is subject to the federal no-disadvantage test, for as long as that workplace agreement is in operation; or

(b) to the extent that it is inconsistent with a workplace determination that is in operation; or

(c) if an enterprise agreement made under the Commonwealth Fair Work Act applies to the public sector employer and employee; or

(d) to the extent that it is inconsistent with a workplace determination (within the meaning of the Commonwealth Fair Work Act); or

S. 9 amended by No. 24/2009 s. 16.

s. 9

S. 10(2)(a) amended by No. 27/2008 s. 6.

S. 10(2)(b) amended by No. 24/2009 s. 17(1).

S. 10(2)(c) inserted by No. 24/2009 s. 17(2).

S. 10(2)(d) inserted by No. 24/2009 s. 17(2).

Part 1—Preliminary

Public Sector Employment (Award Entitlements) Act 2006No. 15 of 2006

9

(e) if the public sector employer and the employee are covered by a modern award within the meaning of the Commonwealth Fair Work Act.

__________________

S. 10(2)(e) inserted by No. 24/2009 s. 17(2).



10

Pt 3 (Heading and ss 11–15) repealed by No. 27/2008 s. 7.s. 10

* * * * *



11

PART 3A—RESTRICTION ON AGREEMENTS

15A Definitions

In this Part—

collective agreement means—

(a) any of the following agreements within the meaning of the Commonwealth Act—

(i) an employee collective agreement;

(ii) a union collective agreement;

(iii) a union greenfields agreement;

(iv) an employer greenfields agreement;

(v) a multiple-business agreement;

(b) a certified agreement;

(c) an enterprise agreement made under the Commonwealth Fair Work Act;

employee includes a prospective employee;

statutory industrial agreement means an agreement made under a law of the Commonwealth or the State that regulates all or part of the terms and conditions of employment of an employee, other than a collective agreement or an individual flexibility arrangement made under the Commonwealth Fair Work Act.

Pt 3A (Heading and ss 15A–15E) inserted by No. 80/2006 s. 22.

S. 15A inserted by No. 80/2006 s. 22.

s. 15A

S. 15A def. of collective agreement amended by No. 24/2009 s. 18(1).

S. 15A def. of statutory industrial agreement amended by No. 24/2009 s. 18(2).



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15B Restriction on public sector employer offering statutory industrial agreement

(1) A public sector employer must not offer an employee a statutory industrial agreement that provides any terms or conditions of employment that are materially different from the terms and conditions of employment that would otherwise apply to the employee in employment with the employer under a collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award.

(2) A public sector employer must not accept an offer from an employee of a statutory industrial agreement that provides any terms or conditions of employment that are materially different from the terms and conditions of employment that would otherwise apply to the employee in employment with the employer under a collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award.

s. 15BS. 15C inserted by No. 80/2006 s. 22.

15C Limitation on certain powers of public sector employers

(1) A public sector employer has no legal capacity or power to offer an employee a statutory industrial agreement that provides any terms or conditions of employment that are materially different from the terms and conditions of employment that would otherwise apply to the employee in employment with the employer under a collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award.

S. 15B inserted by No. 80/2006 s. 22.



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(2) A public sector employer has no legal capacity or power to accept an offer from an employee of a statutory industrial agreement that provides any terms or conditions of employment that are materially different from the terms and conditions of employment that would otherwise apply to the employee in employment with the employer under a collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award.

(3) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the Corporations legislation.Note

Section 5G of the Corporations Act provides that if a State law declares a provision of State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency.

15D Common law not excluded

Nothing in this Part prevents a public sector employer from providing in an employee's contract of employment a term or condition of employment that is more beneficial to the employee than that to which he or she is entitled under any collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award.

15E Application

The regulations may provide that this Part or any provision of this Part does not apply to a public sector employer or class of public sector employer.

__________________

S. 15D inserted by No. 80/2006 s. 22.

s. 15D

S. 15E inserted by No. 80/2006 s. 22.



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PART 4—GENERAL

16 Exclusion of other legislation

This Act applies despite anything to the contrary in any other Act, whether passed before or after the commencement of this Act (unless expressly excluded) and is intended to limit any provision in respect of the legal capacity and powers of a public sector employer.

* * * * *

18 Regulations

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

__________________

* * * * *

═══════════════

s. 16

S. 17 repealed by No. 27/2008 s. 8.

Pt 5 (Heading and ss 19, 20) repealed by No. 27/2008 s. 9.



15

ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 8 February 2006

Legislative Council: 4 April 2006

The long title for the Bill for this Act was "to protect employment entitlements of certain public sector employees, to amend the Workplace Rights Advocate Act 2005 and the Commonwealth Powers (Industrial Relations) Act 1996 and for other purposes."

The Public Sector Employment (Award Entitlements) Act 2006 was assented to on 11 April 2006 and came into operation on 3 July 2006: Government Gazette 22 June 2006 page 1239.

EndnotesPart 1—Preliminary


16

2. Table of AmendmentsThis Version incorporates amendments made to the Public Sector Employment (Award Entitlements) Act 2006 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006

Assent Date: 10.10.06Commencement Date: Ss 21, 22 on 11.10.06: s. 2(1)Current State: This information relates only to the provision/s

amending the Public Sector Employment (Award Entitlements) Act 2006

Public Sector Employment (Award Entitlements) Amendment Act 2008, No. 27/2008

Assent Date: 3.6.08Commencement Date: 4.6.08: s. 2Current State: All of Act in operation

Workplace Rights Advocate (Repeal) Act 2009, No. 21/2009Assent Date: 10.6.09Commencement Date: S. 7 on 1.10.10: Government Gazette 30.9.10 p. 2286Current State: This information relates only to the provision/s


Fair Work (Commonwealth Powers) Act 2009, No. 24/2009Assent Date: 17.6.09Commencement Date: Ss 14–18 on 1.7.09: Special Gazette (No. 227) 1.7.09

p. 1Current State: This information relates only to the provision/s


Statute Law Revision Act 2011, No. 29/2011Assent Date: 21.6.11Commencement Date: S. 3(Sch. 1 item 76) on 22.6.11: s. 2(1)Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––



17

3. Explanatory DetailsNo entries at date of publication.



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